The Global Lawyer and Globalization of Commerce - Essay Example

Global Lawyer Essay Nonmember 10, 2012 Name: Name of the client Institution: Name of institution Question 1 The main difference between inquisitorial system and adversarial system is the role that the court plays in case proceedings. In the former, the court is a part and parcel in the investigation of facts of a particular case while in the latter; the court plays the role of the objective referee between a defendant and the prosecutor (Irsten 2002). In inquisitional systems, the approach used is that judges themselves reach at a conclusion for they are the ones who acts as investigators while in an adversarial system, the judge only delivers a judgment that is reached after hearing both sides of the parties. Thus for a judge to draw a conclusion in an adversarial system, relevant facts between both parties to the case has to be presented and given a fair hearing while in the inquisitional system, a judge can simply make a conclusion based on his or her own findings. Inquisitional systems are systems where judges do not necessarily trust the evidence that is presented by the observer while the adversarial systems, judges clearly believes that facts are relative to the observer and will most likely pronounce their judgment after looking at the facts presented by the observer. The approach between the inquisitorial system and the adversarial system is clear in that the former is subject to the judge own investigations and hence very subject and can be biased for biasness is human nature while the latter is very objective and relies on the facts presented. The adversarial system uses common law whereby the law will be only delivered by judges and it represents the decisions of the courts and also tribunals. The adversarial system uses common law hence the rationale is based on the belief that facts that are similar cannot be treated differently on different occasions and this law is bound to be applied in the future relying on past decisions that have been arrived at in similar cases (Goldsmith 1997). Inquisitional systems legal sources include collections of laws that have been codified and hence in inquisitional systems, legislation is the main source of law and the courts playing the role of investigators in cases. Hence inquisitional systems do not apply common law and hence are not bound by precedent like the adversarial systems. Question Two In regard to disciplining a lawyer who has engaged in professional misconduct, ABA Model requires that lawyers who have engaged in the misconduct be disciplined by the Bar Associations and hence the law society is held accountable for the discipline of lawyers. CCBE Code, in regard to disciplining lawyers engaged in professional misconduct (Terry 1993), directs that the lawyer is subject to disciplining authorities of the host member state and notice to be made to the home state while if the lawyer is in the home member state, he or she will be disciplined in accordance with the CCBE Code. The difference is clear in that in case of the CCBE Code, the host state jurisdiction supersedes the CCBE Code while the ABA Model stipulates that if there is misconduct, regardless of where the misconduct has occurred, a lawyer is subject to be disciplined in reference to the jurisdiction of his home state. However, a crossroad in reached whereby in regard to the ABA Model Rule 8.5 (a), a lawyer is subject to be disciplined in a jurisdiction where he or she practices and hence if the jurisdiction is subject to The CCBE Code, the disciplinary procedure and actions taken will reflect the views espoused by The CCBE Code in dealing with a misconduct in legal profession (Terry 1993). Rule 8.3 of the ABA Model requires that other lawyers are to report a lawyer if they have information that the lawyer has violated a rule regarding to discipline or has engaged in professional misconduct with the exceptions of some information that comprises the confidentiality of the lawyer – client relationship to the disciplinary authorities (International Bar Association 1988). However, CCBE Rule 5.9 requirement involves attorneys trying to settle the matter through involving other lawyers in the matter. Question Three One of the responses that have been given in the effort of addressing problems raised by double deontology is having lawyers adopt their states jurisdictions standards to international practice. For instance, lawyers to use the ethics rules applicable to their host state but also use the home rule as a guideline. This also presents another solution that is in line with the former solution in that, law firms also can set up home jurisdictions and hence the home jurisdictions are to apply to all lawyers of the firm regardless of the state of origin (Terry, 2008). The best response given is to have a set of ethics that any lawyer regardless of his or her state jurisdiction will be subjected to. This will ensure that objectivity is achieved as opposed to when different lawyers are using subjective set of standards from their own jurisdictions. For example, the adoption of The CCBE Common Code of Conduct which though, it was designed for European lawyers, is now adopted to also apply between US lawyers and this is a green light that an overarching ethics standards set can be reached in the global scene and hence attain convergence of ethics to regulate multi – jurisdictional lawyers and eliminate legal vacuum created in the legal profession when lawyers fail to identify which code of ethics that they should conform to (Toulmin 1992). With the adoption of an international structure of principles that are to govern professional practitioners like the CCBE, comes another response to solving double deontology issues, that is, the adoption of the international framework should be legally binding and enforceable to both host and home countries. The adopted of an international framework of ethics by transitional lawyers elicits a sense of uniformity and hence eliminates the problems created by double deontology (Nagel 2007). Lawyers can also use a positive approach principle whereby, the prevailing host state ethics rules are to be used with the exceptions of the articulated exception in the home state ethics rules (Terry, 2008). Also through the use of “conflicts of law” system whereby, a code for instance the CCBE gives guidance as to which ethics rules should be used. Alternatively, there can be a combination of the host’s ethics rules and the home ethics rules to present a common ethics rules in a bid to mitigate double deontology. Question 4 The American rule stipulates that each party whether they win or lose caters for its own attorney fees with the exceptions of the existence of a specific contract or a statute while the English rule requires the looser party to pay the fees of the winning party (Ross 1997). The English rule ensures that a complainant is accorded legal representation if the claimant is not financially stable to cater for the legal fees. On the other hand, the American rule in a way locks out a claimant who may wish to have legal representation but does not have the capacity to pay legal fees. Another difference between the American rule and the English rule is that the English rule is seen to deter frivolous litigations since if one party is not sure of whether they have enough facts to win a case or the possibility of winning a case are not certain, the most probable thing that they would do is to avoid such a case for fear of paying the winning party’s attorney fees while the American rule does little to mitigate wasteful litigations because own party pays its own fees. Question 5 “Choice of law” is a clause in a contract providing a venue through which each party to the contract is to specify which law will be used in the event of a dispute. I would advise the law firm to adopt the “choice of law” clause in the contract based on the following reasons; the law that will favor the law firm in times of lawsuits by choosing the provision that has fewer laws which can be used by a client in a lawsuit. The company will have the freedom of avoiding state laws that have ineffective policies by choosing state laws that have effective policies in cases of lawsuits between two parties from different jurisdictions (Edwin 1995). On the same note too, when there is a “choice of law” clause in a contract, it serves in informing a company on obtaining knowledge of unforeseen legal treatment and how litigation of issues in future would be and hence predictability. In addition, the cost benefits that accrue to a company when there is a choice of law clause allows the company to choose a country which is domestic to them and to which the judges in that country have been trained to arbitrate in that jurisdiction and hence the cost of representing the firm’s litigations would be lower. Hence, the ratio decidendi on the choice of law for a firm that has two offices in two countries would heavily lean on the country whose law favors the firm in times of lawsuits. Question 6 The attorney client relationship in some countries is protected by the ethics rules for instance in the USA, requires that information relating to an attorney and his or her client is protected with the exceptions of when the client gives consent for the information to be released, disclosure is necessitated by authority for representation and if the disclosure has an exception for instance if the information given out is related to a crime that is to be committed (Morrison, 1996). Lawyers are expected to disclose information if there are exceptions for instance crime to help in the administration of justice. In regard to ABA Model Rules, confidentiality between an attorney and a client is upheld for the purposes of open communication between an attorney and his/her clients. However, the legislation in civil law countries requires that the lawyer to give information relating to a client for the purposes of administering justice (Morvillo & Anello 2008). Disclosing of confidential information is treated as a professional misconduct attracting necessary steps for discipline, for instance, disqualification from practice, injunction and civil liability among others. In civil law countries, the lawyer’s duty is to preserve communication between him/her and the client and failure to which criminal penalties are applied. In regard to the CCBE, confidentiality is the duty of the lawyer and his associates with no exceptions made. Rule 2.3 purports that confidentiality in a lawyer – client relationship is a general principle and hence under The CCBE Code, confidentiality remains the ultimate goal of the lawyer while under ABA Model, exceptions include where the information attracting professional misconduct involves confidentiality between the lawyer and the client. The conclusion drawn from this analysis is that a lawyer who is bound by The CCBE Code may find fault in a lawyer who has violated the lawyer – client relationship (Walkowiak 2008). Question 7 Positive Consequences There will be increased competition between the foreign legal consultants and the domestic legal consultants as the domestic legal consultants are likely to improve their legal skills for the global job market. Thus allowing foreign legal consultants into the country will serve as an opportunity for advocating the needs of lawyers practicing international law. Though foreign legal consultants will be practicing on a limited basis, there would be exchange of legal ideas between the domestic legal consultants and the foreign legal consultants. Another positive consequence is that there would be creation of jobs to the foreign legal consultants in the country and also economic development which will be brought by the foreign legal consultants setting up their offices in the country and also attracting International Corporations which they represent in the country (Nagel 2007). By having foreign lawyers practicing law on a limited basis in a host country, public protection is enhanced for it bars opportunists who would want to offer legal services and they may not be qualified. On this note too, it is important to mention that though the foreign lawyers are to practice on a limited basis, host lawyers are not barred from employing the foreign lawyers but the conditions that prevails is that the host lawyers are to thoroughly supervise the activities of the foreign lawyers and hence there is enhanced accountability on the side of the host lawyers. Having foreign lawyers practice in a country is a greater effort in making the host country a country of choice for international arbitration (Edwin 1995). This not only improves the economy of the host country when such a country is chosen as a venue for international arbitration but it is also a gate where the host country lawyer’s opportunities are opened up for in and out of counsel arbitration. For instance in California, an attorney who is not licensed to practice in California is barred from practicing in the state and hence lawyers in California too cannot engage in California arbitrations that are international. Therefore, it’s a dead lock not to allow foreign lawyers to practice in the host country. Negative Consequences The most prominent negative consequence of barring foreign from practicing on a limited basis in a host country is the negative economic consequence whereby even in international arbitrations, a country is not chosen as a host country for international arbitration and this brings all the losses accompanied by the country being chosen as the ground upon which international arbitration are held. Another negative consequence of limiting lawyers in practicing law in a host country is that their every legal activity in the host country is supervised by host state lawyers if such a lawyer is employed or working with a host state lawyer. This without a doubt eludes the confidence in the international lawyer in offering legal services which may be better than the host country’s lawyer since the international lawyer is versed in international and overarching codes of ethics that transcends international boundaries (Edwin 1995). The limited approach of practicing law by foreign lawyers bar foreign lawyers in injecting competition to domestic lawyers, if the foreign lawyers was to be fully licensed to practice in the host country. The limited approach makes it impossible for foreign lawyers to practice as domestic lawyers for they are only engaged in some forms of law practice and not all law practices and this creates a safe haven for domestic lawyers for there are some practices in law that foreign lawyer is not allowed to engage in. In addition, if a country bars the admission of foreign lawyers whether on limited basis, full time basis or on a Pro hac vice basis, the country risks having lawyers who are not licensed to practice a jurisdiction to practice illegally and hence avoid paying of legal fees (International Bar Association 1995). From the analysis of the pros and cons of lawyers practicing on a limited basis in the host country, my recommendation is that the positive consequences that are in line with the global changes which are facing the legal profession overrides the negative consequences and therefore limited practice by foreign lawyers should be allowed. However, there are requirements that need to be taken into consideration and they include; the foreign lawyers are not supposed to appear in courts though they can be actively engaged in advising clients allied to them, the lawyers should also not be involved in the preparation of instruments that affect the citizens of the country for such instruments would be best prepared by domestic lawyers who understand the problems and the needs of the citizens best than the foreign lawyers for instance the constitution (Ronald 1996). Question Eight The conflicting view is that there is loss of trust between the multi state lawyer and the client that he or she is representing. For instance, an American lawyer is bound by the ABA Model Rules of Professional Conduct, in regard to rule 8.5, the lawyer will be bound by the jurisdiction that he is licensed to practice in and this possess ethical dilemma when such a lawyer is to practice in a different jurisdiction. Lawyers in various jurisdictions are likely to find more jobs in jurisdictions that have fewer lawyers due to increased globalization of commerce. With the world becoming a global region, legal practitioners also have to expound and this means that they can practice in other jurisdictions and hence more jobs. Increased globalization of commerce also helps in promoting of information exchange between various legal associations all over the world. For instance, when a lawyer from USA practices in the UK, the UK colleague has a greater role to play in helping the US lawyer in practicing in the UK and hence this interaction is bound to foster exchange of information in the legal profession (Feder n.d.). Increased globalization of commerce also provides room through which developments in the legal profession are to be achieved or through which the legal profession is kept abreast in modern developments. It is the principle behind lawyers engagement in multi – state jurisdictions and the reasons as to why the topic of the “global lawyer” is becoming a force to reckon with in the legal profession without which (increased globalization of commerce), lawyers would only be practicing in their state jurisdiction but thanks to globalization of commerce, recent development for instance, of having an overarching code of ethics have emerged (Toulmin 1992) and hence development in the legal profession and lawyers in their efforts to become international lawyers are to adopt to the overarching codes of ethics (Feder n.d.). Bibliography EDWIN, G. (ed.), “Law without frontiers: a comparative survey of the rules of professional ethics applicable to the cross-border practice of law,” Kluver International and International Bar Association, London 1995. FEDER, M. Privilege in Cross – Border Litigation. Vancouver, Canada. n.d.. 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